State v. Williams, 63587

Decision Date31 May 1983
Docket NumberNo. 63587,63587
PartiesSTATE of Missouri, Respondent, v. Doyle WILLIAMS, Appellant.
CourtMissouri Supreme Court

Thomas J. Marshall, Public Defender, Moberly, for appellant.

John Ashcroft, Atty. Gen., John M. Morris, Asst. Atty. Gen., Jefferson City, for respondent.

GUNN, Judge.

Defendant-appellant, Doyle Williams, was convicted by jury of capital murder, § 565.001, and sentenced to death, § 565.008(1), giving this Court exclusive jurisdiction of his appeal. Mo.Const. art. V, § 3. The appeal raises a bevy of points urging reversal, each of which will receive subsequent and appropriate treatment. We affirm the judgment of conviction and sentence.

Defendant was convicted of the capital murder of Kerry Brummett. Inextricably woven into Brummett's murder are the circumstances of the burglary of the offices of Dr. D.A. Domann of Auxvasse, Missouri, and his subsequent murder. Critical to the state's case is the testimony of John Morgan, a co-actor with defendant in many nefarious activities. Morgan was given immunity in this case in exchange for his testimony.

The prologue of events leading to defendant's conviction starts in April, 1980. Defendant and John Morgan burglarized the medical offices of Dr. D.A. Domann in Auxvasse taking, among other items, blank prescription pads. Shortly thereafter, defendant and Morgan went to Morgan's trailer home and in the presence of Kerry Brummett discussed means of utilizing the prescription pads. At that time, Brummett, who was Morgan's roommate, saw the prescription pads which bore Dr. Domann's name. Later in the day, defendant made a clumsy effort to pass forged prescriptions in a Columbia drug store, but he was caught in flagrante delicto, arrested and charged with attempt to obtain a controlled substance by fraud.

Faced with the charge arising from the forged prescription, defendant was convinced he could "beat the rap" and confided to Morgan that he could avoid conviction "if the doctor didn't testify that he hadn't signed the prescription"--a presage for the death of Dr. Domann.

Sometime later, on October 7, 1980, defendant revealed to Morgan that he had killed Dr. Domann and placed his body in a Callaway County clay pit. On October 8, 1980, defendant suggested that Kerry Brummett should meet the same fate as Dr. Domann in retribution for having testified against Morgan in forgery charge proceedings. 1

The next day, October 9, 1980, a sequence of rather bizarre events involving a multitude of individuals lurched into motion, culminating in Kerry Brummett's murder.

A recounting of the manifold details of clandestine meetings with a variety of individuals and at a farrago of sites is not necessary to resolution of the case. It is sufficient to note that the primary dramatis personae were defendant, John Morgan, Kerry Brummett and Betty Coleman, one of at least two of the defendant's serious girl friends.

The basic plan called for the elimination of Kerry Brummett to prevent his testimony against defendant on the burglary of Dr. Domann's office. Betty Coleman was to arrange for a date with Kerry Brummett in Jefferson City and drive him in a borrowed auto to a deserted area in Callaway County adjacent to the Missouri River. Defendant and Morgan would be lying in wait for the kill. The plans ultimately came to fruition. Betty Coleman did meet and drive the unsuspecting Brummett to Callaway County for an early morning rendezvous with Morgan and defendant, who emerged from their place of concealment on the arrival of the Coleman auto. Brummett was dragged from the auto by defendant and Morgan who beat and kicked the hapless and struggling victim about the head and body, defendant utilizing the barrel end of his .357 Magnum on Brummett's head for greatest effect. Using a pair of handcuffs he had previously borrowed from an undiscriminating Auxvasse police officer friend, defendant with Morgan's help was able to bind Brummett's hands behind his back and force him, bleeding and dazed, into the trunk of Coleman's auto. 2 At some point during the period of pernicious activity, Brummett's fervid supplications that he would not testify against defendant went unheeded. Brummett was then driven to a location near the river bank and pulled from the car. Morgan obtained a bumper jack and rope to serve as a body weight. Defendant continued his bodily attack on the handcuffed victim, striking him in the back and sending him stumbling down the riverbank toward the Missouri River's current. Brummett's flight from further attack continued, with defendant in close pursuit, until he ran directly into the river and, still handcuffed, sank beneath the surface, able to rise twice. As Brummett surfaced for the second time defendant ordered Morgan to shoot him. Morgan responded by firing over the victim's head. Remembering that the handcuffs could be traced, defendant waded into the river in an unavailing effort to recover Brummett's handcuffed body, which had disappeared, not to be retrieved from a watery grave until seven days later on a sandbar.

Cause of the victim's death was drowning. His scalp had been lacerated by a blunt instrument. Also, Brummett's gold chain, traces of blood, the victim's hair and the brand of cigarettes smoked by him were found in the car used by defendant and Morgan in moving their prey about. At the point of assault, the victim's eye glasses and plastic name tag were found.

Defendant's defense was alibi by a girl friend, Nina Potts, testifying that she and defendant had been sharing the same bed during the critical period.

The jury found defendant guilty of capital murder with sentence of death. The aggravating circumstance designated was that Brummett was murdered for the purpose of preventing him from testifying in a judicial proceeding. Sec. 565.012.2(12), RSMo, Supp.1982.

Other pertinent facts will be set forth as they relate to the points presented.

Defendant, through counsel and pro se, has raised a substantial number of points of appeal. This review considers all points raised, alleged trial errors and the death sentence. Sec. 565.014. 3

Point I

Defendant's initial point raises a technical challenge to § 565.012.2(12), RSMo Supp.1982, alleging that it is violative of Mo.Const. art. III, § 23, which requires that no bill shall contain more than one subject and which shall be clearly expressed in its title. Section 565.012 was amended by the General Assembly in 1980 to add as paragraph 2(12) the following statutory aggravating circumstance to be considered in assessing punishment in capital murder cases: "The capital murder was committed by the defendant for the purpose of preventing the person killed from testifying in any judicial proceeding."

The provision was enacted as part of C.C.S.H.C.S.H.B. 1138, 1279, 1461, 1534, 1537, 1592 and 1634 (80th General Assembly), found at Laws 1980 at 494-99. The legislation was entitled: "An Act to repeal sections 545.885, 558.016, 558.026, 565.012, 566.030 and 566.060 RSMo 1978, and to enact in lieu thereof twelve new sections relating to sexual assaults and the prevention of such assaults, with penalty provisions."

This matter will be considered under plain error, as it was not raised in motion for new trial. Rule 29.11(d); Rule 29.12(b).

The test to determine if a title violates § 23 is whether all of the provisions of the statute fairly relate to the same subject, have a natural connection therewith or are the incidents or the means to accomplish its purpose. State ex rel. Williams v. Marsh, 626 S.W.2d 223, 228 (Mo. banc 1982). This constitutional provision should be liberally construed. State ex rel. McClellan v. Godfrey, 519 S.W.2d 4, 9 (Mo. banc 1975).

The bill in question related to sexual assaults and the prevention of such assaults, with penalty provisions. Defendant concedes that the aggravating circumstance paragraph 2(11), added in the same bill as paragraph 2(12), "[t]he capital murder was committed while the defendant was engaged in the perpetration or in the attempt to perpetrate the felony of rape or forceable rape or the felony of sodomy or forceable sodomy," was part of a logical treatment of sex crimes. However, he asserts that § 565.012.2(12), RSMo Supp.1982, pertains only to the killing of a witness and is unrelated to sexual assaults or the prevention thereof. But defendant's reading of the act is entirely too narrow. Section 565.012.2(12), RSMo Supp.1982, is but a part of the Missouri Criminal Code enacted in 1977 and as referred to in defendant's counsel's brief is part of the overall "Crimes and Punishment" heading.

Murder committed to prevent a witness from testifying in a sexual assault case is not unique. See State v. Blair, 638 S.W.2d 739, 760 (Mo. banc 1982). But the fact there is no sexual assault involved does not prevent the aggravating circumstance of § 565.012.2(12), RSMo Supp.1982, from passing constitutional muster. It certainly falls within the broad descriptive category of "Crimes and Punishment."

Point II

Defendant next alleges that the trial court erroneously overruled his motion for continuance filed before trial.

May 29, 1981, the trial judge granted defendant's request for a continuance and set the date of trial for September 14, 1981. On August 28, 1981, co-counsel, Charles G. Hyler, entered his appearance and requested another continuance, which was denied on September 3, 1981. The trial commenced September 14, 1981 as scheduled.

Application for a continuance is addressed to the sound discretion of the trial court and an appellate court will not interfere unless it clearly appears that such discretion has been abused. State v. Oliver, 572 S.W.2d 440, 445 (Mo. banc 1978). On the record, no abuse of discretion appears. The trial date was set three months before trial was to commence. On August 24, 1981, Charles G. Hyler entered his appearance as co-counsel with the understanding that ...

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